Is My Prenup Valid? How the Date May Affect Validity

August 26, 2013

Premarital Agreement - PenThe date of a premarital agreement (commonly referred to as a "prenup") will determine the law applicable to its enforcement and validity. The law related to the validity and enforcement of premarital agreements has changed substantially throughout the past 30 years. Divorce attorneys are frequently asked the question:

"Is my prenup valid?"

Any premarital agreement executed after January 1, 1986 is subject to the Uniform Premarital Agreement Act (UPAA). However, prior law continues to govern any pre-1986 premarital agreements. In 2002, portions of the UPAA were significantly amended. Again, those changes do not apply retroactively so the 1986 version of the UPAA applies to all premarital agreements executed between January 1, 1986 and January 1, 2002. So, considering all of these timelines, the following is a list of differences to examine:

Premarital Agreement Executed Between 1/1/1986 and 1/1/2002

  • Relaxed statutory disclosure standards - Spouses are held to a lower duty to make a fair, reasonable, and full disclosure regarding property or financial obligations
  • Burden of proof - The party claiming the premarital agreement is unenforceable bears the burden of proof on that contention.
  • Representation of counsel - No requirement that party against whom enforcement is sought was represented by an attorney at the time the premarital agreement was executed.
  • Waiting period - No mandatory waiting period between presentation of premarital agreement to a party and the date it is signed.
  • Spousal Support Waiver - Relaxed statutory requirements applied to spousal support waiver.

Premarital Agreement Executed Between 1/1/2002 and the present

  • Heightened statutory disclosure standards
  • Burden of proof - Burden shifts to party attempting to enforce the premarital agreement to prove it was executed voluntarily.
  • Representation of Counsel - Party against whom enforcement is sought must have been represented by independent counsel or signed an express waiver of representation in a separate document.
  • Waiting period - There must be at least seven days between the date a party is first presented with the premarital agreement and the date it is signed.
  • Spousal Support Waiver - A spousal support waiver in a premarital agreement must meet strict statutory standards in order to be enforceable.

Continue reading "Is My Prenup Valid? How the Date May Affect Validity" »

New Tax Considerations After DOMA Overturned

August 22, 2013

DOMA - Defense of Marriage ActThe Defense of Marriage Act (DOMA) was enacted on September 21, 1996 and permitted the states to refuse to recognize same-sex marriages legally entered into in other states. This means that under DOMA, if a same-sex couple who legally married in Hawaii moved to California, California would not be required to recognize the marriage and provide state benefits otherwise provided to married couples. In June 2013, the Supreme Court of the United States declared DOMA unconstitutional. In the aftermath of that landmark decision many same-sex couples are questioning whether they will receive any retroactive relief for the various benefits they were deprived of for nearly seventeen years.

New York legalized same-sex marriage in June 2011 and extended equal rights under estate tax law to legally married same-sex couples in July that same year. Estate tax rights were even extended to those married in other states before New York legalized same-sex marriage. However, federal laws prevented New York from implementing any retroactive application of the estate tax law. This problem came to light when Edie Windsor sued the IRS for denial of her right to inherit granted to other married couples. In 2009, Edie paid $363,000 in federal taxes upon the death of her spouse. As their marriage was not federally recognized under the tax code, she was unable to reap estate tax benefits available to married couples. The Supreme Court held Edie was entitled to a tax refund.

Same sex marriage wedding ringsSimilarly, since Massachusetts issued the first marriage license in the United States to a same-sex couple in 2004, wedded same-sex couples have been unable to file joint federal tax returns. Although a same-sex couple may be married under the laws of their home state, they were unable to claim any federal tax benefits. Now that such federal tax laws have been overturned, same-sex couples question whether they can retroactively realize federal tax benefits back to the date of their marriage.

In general, a tax refund can be claimed within three years of filing the incorrect tax return or within two years of the overpayment. Under this common rule, same-sex married couples may be able to collect overpaid taxes for the past three tax years. Some have rumored that the IRS will extend this typical statue of limitations to allow same-sex married couples to collect tax refunds even further back.

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Child Custody and Visitation - Madonna & Guy Ritchie Lead by Example Post-Divorce

August 20, 2013

In January 2009, Madonna and Guy Ritchie finalized their divorce after eight years of marriage. At the time of their split, many rumors surfaced regarding an acrimonious divorce and possible affairs. Madonna is often cited as the source of the "adoption trend" for celebrities. In fact, as a mother of four children, Madonna only has one biological child with Ritchie, their son Rocco. In July 2013, Ritchie had his bar mitzvah at the Kabbalah Centre in New York City. Despite any lingering bitterness between Madonna and Ritchie, both parents attended their son's bar mitzvah and behaved admirably.

Madonna and Ritchie are not the only celebrities to work together for the sake of their children. As we have previously blogged, Charlie Sheen recently spoke out on behalf of his ex-wife Denise Richards in her custody battle with another one of Sheen's wives, Brooke Mueller. Jennifer Lopez and Marc Anthony announced their surprising split two years ago this summer. However they are often seen together at events supporting their twins. In fact, Lopez and Anthony have even managed to maintain their working relationship post-divorce.

Divorce can be an incredibly difficult time for all parties involved, especially children. It is important for both parents to make every effort to make the transition as seamless as possible for the children. The assistance of a mental health professional may be beneficial for all parties involved. In family law cases, therapists often recommend that both parents remain actively involved in a child's life which may require attending the same events and celebrations. In the interest of promoting stability and normalcy for the children, divorcing parents can decide to continue spending important holidays together with their children. Although the holiday may not be pleasant for the parents, the children cherish time spent together as a family.

Sharing Child Custody at a soccer gameIt is important to consider that in some cases, it may not be in the best interest of the children for divorced or divorcing parents to interact. Where there is a history of domestic violence between the parties or if a restraining order is in place, parents should refrain from all contact.

Additionally, if the parties cannot tolerate each other, engage in arguments in front of the children, or consistently make disparaging comments about the other parent, they should likewise refrain from all contact. Most, if not all, agreements and orders regarding custody/visitation require the parties to co-parent peacefully. Thus, any disparaging conduct may be a violation of a court order.

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California Alimony Calculation - Fringe Benefits as Income Available for Support

August 13, 2013

California Alimony CalculatorOne of the biggest battles in many contested divorce cases is the issue of spousal support (also commonly referred to as alimony) and analysis of California spousal support factors. The most prominent factors a court typically considers when making a spousal support award are the supported spouse's needs and the supporting spouse's ability to pay support. Therefore, the supported spouse wants to make sure the court considers every single source of income the supporting spouse has available for support. The supporting spouse wants to minimize his/her income as much as possible without misleading the Court or the other party. One issue that has been litigated in California courts is whether fringe benefits or "perks" received through employment are income available when calculating support.

Many companies offer alternative compensation or perks to employees such as car allowances, cell phones, business meals, and company-provided day care. Parties and attorneys often debate whether these "non-cash" perks should be considered income from which the supporting spouse can pay support. Under California law, perks can be considered as income available for support if the benefit is not being divided as an asset and it has an economic value which can be added to the spouse's income for the purposes of support calculation.

Learn more about division of property in divorce

Cell Phone as Fringe Benefit in Alimony CalculationIn cases where a benefit will directly reduce the supporting spouse's monthly expenses, divorce attorneys will argue that it should be considered as income for support purposes. For example, if the supporting party's employer pays for his/her cell phone every month and the cell phone is not limited to company use, the supporting party will not have to pay monthly cell phone premiums for personal use of a cell phone.

Likewise, if a company pays for the supporting party's gas or auto insurance, the supporting party will not pay those expenses out of pocket. In these situations, the fringe benefit will likely be valued and included as income available for support.

Another major issue of contention in this area of law is whether the value the benefit assessed should be considered "taxable" or "non-taxable" income. According to the divorce attorneys at the firm, one California case holds that tangible benefits should be included as taxable income. However, until the employee actually pays taxes on such benefits it is unfair to consider them as gross deductions.

Business Lunch as Fringe Benefit in Alimony CalculationIn addition, some benefits such as a business meal may not reflect the cost of a normal meal. The supporting spouse may get to eat a $50.00 lunch on the company's dime; however, if he/she had bought their own lunch, he/she would likely have spent less than $10.00. The court will use discretion in considering a request from a party or divorce attorney to categorize these types of benefits as income where the result might seem unreasonable.

Read more about the effect of divorce on taxes and finances

Unfortunately, there is no such thing as a San Diego spousal support calculator, and analysis of the factors affecting spousal support in California is complicated. Often times, a person will need to rely on the advice of an experienced and knowledgeable divorce lawyer in order to understand the theories and process involved.

Continue reading "California Alimony Calculation - Fringe Benefits as Income Available for Support" »

How to Achieve a More Amicable Divorce in San Diego

August 7, 2013

When people think of "divorce", they don't often associate it with the term "amicable", which means to be "characterized by friendly good will" or "peaceable" (definition courtesy of Merriam-Webster). Thus, "amicable divorce" may seem like quite an oxymoron. However, it is often advantageous to everyone involved if the divorce can be achieved and in a somewhat amicable fashion.

There are several things that both parties can do to overcome the major pitfalls to an amicable divorce, three of which are discussed below. In doing so, both parties are more likely to avoid the high cost, painful feelings, and adversarial aspects that are part of a litigated divorce.

Divorce Tip Heading - Minimize EmotionsOften times, divorcing spouses see the divorce process as a means for revenge and thus an instrument to hurt the other spouse. However, the problem with this approach is that it usually causes the other side to respond in the same manner, thus escalating everyone's emotions involved. The "blame game" for instance tends to increase tension and prolong the divorce process. Although it is important to recognize that feeling exists, an amicable divorce is more likely achieved when both parties attempt to minimize the role that emotions play in a divorce. Divorce attorneys frequently must advise their clients with respect to this issue.

Divorce Tip Heading - CommunicationA divorce is essentially about business. Thus, an amicable divorce is best achieved when both parties can openly discuss the terms of the "business". Communication requires open disclosure regarding assets and liabilities. The more open the parties are with each other, the less likely the attorneys are to be required to seek information through the "discovery process". The best divorce attorneys regularly work with their clients to facilitate communication between the parties.

Divorce Tip Heading - Service of Divorce PapersEfforts to minimize emotions and maximize communication both begin with the delivery of the divorce papers. In a proceeding for dissolution of marriage or legal separation, the moving party must, among other requirements, serve the responding party with a Summons and a Petition for Dissolution. Being served with these papers often incites a tremendous amount of fear, anger and confusion. Thus, it is advisable that the person filing for divorce consider discussing the divorce with his/her spouse prior to actually filing the documents. This will likely minimize the "initial blow" associated with being served with divorce documents.

Implementing the above strategies does not mean that you always have to give up on important issues. Rather, it means that you and your soon to be ex-spouse are willing to work things out in a fair and cooperative manner so that you both end up with an agreement that works for everyone. Despite efforts to achieve an amicable divorce, the divorce process can be quite complicated, especially in San Diego.

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Should the Court Consider Child Support as Income When Setting Spousal Support?

July 17, 2013

spousal support calculationsFor divorce attorneys in San Diego, one of the most hotly contested issues is typically spousal support. At the end of a divorce case, the parties must agree to a spousal support amount (even if that amount is zero) or have the judge rule on the issue. Spousal support tends to be a contested issue because the law in this area is very subjective and leaves the judge broad discretion to make a fair and just award. In comparison, child support is easier to reach an agreement on because the court is bound by guideline rules and therefore a judge's ruling is much more predicable. Many parties opt to agree to an amount rather than battle it out and incur significant legal fees and costs.

When making a spousal support award at the end of a divorce case, the court must consider a laundry list of factors outlined in Family Code § 4320. These factors focus mostly on the relative income and assets of the parties. The judge will use information regarding the income and assets of the parties to determine each party's ability to pay support and/or need for support. Another important consideration for this analysis is the marital standard of living. A court will not usually make an award of spousal support which would increase the standard of living of the supported spouse above the marital lifestyle. The marital standard of living is sometimes referred to a "glass ceiling" for spousal support.

child support as incomeIn contrast, if one spouse has increased earnings post-separation, the children are entitled to share in those greater earnings. Therefore, child support will not be capped based on any standard of living. A problem presents, however, when the supported spouse receives significant child support which may increase his/her own standard of living beyond what he/she experienced during marriage. In a 2006 California case, the court held that child support is properly considered as income available to the supported spouse to satisfy the marital standard of living.

This seems to be a logical result because the supported spouse is not likely keeping all of the child support received in a separate account and only applying it towards the children's expenses or the children's "share" of household bills. Courts do not keep tabs on parents receiving child support to ensure every dollar is used for the sole benefit of the children. In fact, in previous cases the Court found use of child support funds specifically for the receiving parent's own benefit as a proper use of child support. Although only one case is currently "on the books" regarding this issue, as the law stands, it is proper to ask a court to consider child support as income available to a supported spouse to meet and marital standard of living in a spousal support case.

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Attorney Fees in Family Law for Distraction Tactics

July 15, 2013

Access to legal representationFamily law is one of the most emotional and sensitive areas of law. Tensions can run high when child custody, visitation, support, and even domestic violence are involved in a divorce in California. The importance of what is at stake in a family law case can sometimes cause litigants to retaliate against their spouses outside of the family law courtroom. Often in family law, one spouse has greater access to financial resources than the other. In order to prevent bullying and harassment in family law when the parties are on unequal financial footing California enacted Family Code § 2030.

Family Code § 2030 states:

"In a proceeding for dissolution of marriage...and in any proceeding subsequent to the entry of a related judgment the Court shall ensure that each party has access to legal representation."

buried with form interrogatoriesThe goal of Family Code § 2030 is to ensure both parties have equal litigating power in a family law case. This code section dis-incentivizes the party with access to greater financial resources from "burying" the other party with motions or discovery because they will likely be ordered to contribute to the other party's legal fees based on a "need and ability" analysis. In some cases, three may be one party who has access to significant funds, is an attorney, or works in the legal profession. That party may file lawsuits against his or her spouse in other courts in an attempt to distract or financially drain the other party and avoid Family Code §2030. The question becomes, does the family court have any ability to provide the spouse relief from the unfair tactics employed in other civil courts?

Under Family Code § 2030, the Court has the ability to award attorney fees to one party for expenses incurred in any proceeding related to the prosecution or defense of a divorce case. This has been interpreted by California courts to include civil cases filed against one spouse for the purpose of creating a result in the divorce case. In one California case, Husband filed multiple lawsuits, unrelated to the parties' divorce, against Wife in a civil court. Wife was forced to spend significant time and funds defending the suits and was unable to properly focus on the parties' divorce. Wife asked the family court to order Husband to pay the attorney fees she incurred in the civil lawsuits. The family court determined that it had the authority to grant Wife's request under Family Code § 2030 and ordered Husband to pay her attorney fees.

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Tips for Locating Hidden Assets in Divorce

July 11, 2013

Hidden Assets in DivorceFormer NFL player and Super Bowl champ, Jeremy Shockey, and Daniela Cortazar enjoyed a brief eight months of nuptial bliss before Shockey filed for divorce in January 2013. TMZ now reports that Shockey "is playing dumb with his finances according to his soon-to-be ex-wife." Cortazar claims that Shockey's net worth is over $15 million but apparently Shockey is pretending to know nothing about his finances in his legal documents. Shockey is even refusing to provide information regarding his net worth. Cortazar is asking a judge to punish Shockey with fines or jail time. More importantly though, to get a fair share in the divorce settlement, Cortazar should take prudent measures to make sure that Shockey doesn't have any hidden assets tucked away.

Hidden assets are those assets which are not readily visible typically because signs of ownership have been concealed or disguised by the other spouse. Hidden assets typically include liquid assets such as bank accounts, mutual funds, stock and bonds. These types of liquid assets can easily be transferred into another person or entity's name. Sometimes, these assets are even transferred into accounts in banks offshore which prohibit being touched under the laws of the particular country.

Learn more about divorce and property division

Stocks as hidden assets in divorceHidden assets are particularly important in divorce cases because when a court does not know about a particular asset, it cannot properly divide the asset or award it to one party or the other. Hiding assets is clearly illegal because both spouses lawfully have a claim to all marital property during a divorce proceeding. Therefore, being attentive to marital finances can help ensure that your divorce settlement is fair to you.

The first step in hunting down hidden assets during a divorce proceeding requires a diligent tracking and study of all financial records. Looking at old financial statements may help to identify suspicious transactions. For instance, an asset may initially be present in financial documents and then suddenly it has disappeared near the time of divorce or during divorce proceedings.

Other tips on finding hidden assets include the following:

  • Get a credit report on your spouse. Credit reports may contain information regarding financial accounts or credit that are unknown to you.
  • Look for payment of excess income tax and then a subsequent filing for the tax refund after the divorce.
  • Have items such as artwork, hobby equipment, antiques, original paintings, etc. appraised.
  • Be diligent about locating any cash kept as traveler's checks. You can do this by tracing bank account deposits and withdrawals.
  • Look for any inconsistencies which may indicate delayed disbursements of bonuses or stock options.
  • Be aware of any income that isn't reflected on either financial statements or tax returns.
Read more about property division and divorce in San Diego

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Recent Family Law Case Clarifies Breach of Fiduciary Duty Remedy

July 9, 2013

San Diego Family Law JusticeIn San Diego Family Courts, Judges take the issue of breach of spousal fiduciary duty very seriously. Harsh punishments are available in family court for nondisclosure of assets, failure to provide truthful information regarding income and assets and other misconduct. In April 2013, the California Court of Appeal ruled in In re Marriage of Simmons, a case of first impression. In this case, Mr. Simmons failed to disclose a separate property savings account with a value of $245,850.24. As a result of Mr. Simmons's breach of fiduciary duty, the trial court awarded Ms. Simmons the account in full. However, the appellate court reversed that award.

California Family Code § 721
imposes "a duty of the highest good faith and fair dealing" on spouses when dealing in transactions with each other. Family Code § 1100 clarifies that duty by stating that it "includes the obligation to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest..." During a divorce case, both spouses are obligated to disclose all assets regardless of whether those assets are community property or separate property. The court may impose various sanctions for failure to disclose an asset. If a spouse discovers an undisclosed asset he or she may request 100% of the asset or an amount equal to 100% of the asset as a remedy.

Although the Family Code is clear regarding the availability of the "value of the asset remedy" if the asset is community property, Mr. Simmons disputed the availability of that remedy with regard to separate property assets. The appellate court agreed with Mr. Simmons and, for the first time, ruled that the "value of the asset remedy" is not available if a spouse has only failed to disclose separate property assets. However, despite the appellate court's inclination to rule in favor of Mr. Simmons, it was still aggravated by his pattern of misconduct. Therefore, the appellate court remanded the case back to the trial court level directing the trial court to consider any additional sanctions it would like to impose against Mr. Simmons. Various other family codes, such as Family Code § 271, are available to the trial court as authority upon which to base an additional sanctions awards.

Under Family Code § 271, the court may impose monetary sanctions against a party for obstreperous conduct which impedes the policy of settlement in a divorce case. The court is not limited to an amount of sanctions and may impose them in an amount sufficient to deter future misconduct. Under this provision, the Simmons trial court may decide to order $245,850.24 in sanctions against Mr. Simmons for failure to disclose his separate property asset.

Breach of fiduciary duty is a complex divorce issue that requires representation by a competent attorney. Don't settle for less when determining your rights.

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Collection of Child Support from a Deceased Parent

July 8, 2013

collecting child support in san diegoAs a result of a divorce, many parents are ordered to make child support payments until the child turns 18 (or 19 if he or she is still in high school, living at home, and cannot support himself or herself). Child support is designed to help with child care costs and all other expenses that are associated with being a full-time parent. If children are young at the time of the divorce, child support payments may continue for quite some time.

Unfortunately, during that often lengthy period of time the payor parent (the parent paying child support) might die prior to the time his or her child support obligations have been completed. If this happens, the question remains whether the child support payments then terminate upon the payor parent's death.

While the death of the parent would be devastating enough for any child, it would be even worse if that child then had to suffer financially as well because the child support payments would no longer be received on his or her behalf. Luckily in California, when a non-custodial parent who is ordered to pay child support dies, his or her obligation to continue to pay child support lives on.

Several cases in California have specifically held that an order to pay child support pursuant to a divorce decree or settlement agreement survives the death of the payor parent and remains a charge against the payor's estate. The payor's estate might include bank accounts, 401(k)s, cars, houses, etc. The living, custodial parent would need to file a creditor's claim against the payor spouse's estate. To the extent that they are part of the probate estate, child support payments would take priority over other obligations of the estate.

But what if the deceased payor parent doesn't leave an estate sufficient to cover his or her remaining child support obligation? One way to ensure that child support payments will continue to be received after the payor parent's death is to secure those payments through a life insurance policy. California Family Code Section 4012 states that "upon a showing of good cause, the court may order a parent required to make a payment of child support to give reasonable security for the payment." In other words, this gives the court authority to require a parent to provide life insurance as security for child support.

Another option is for the surviving parent to seek benefits on behalf of the child from the Social Security Administration if the deceased parent was gainfully employed for a period of time.

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Tips to Avoid Child Custody Conflict During the Kids' Summer Vacation

July 3, 2013

child custody summer vacationSchool is finally out and the sun is shining...summer vacation has officially arrived! Unfortunately, child custody arrangements are a hot item for potential conflict during the summer months because the daily routine often goes out the window leaving the possibility for chaos to emerge. Spending the warm carefree summer months battling over child custody issues is not fun for either parent and it is certainly not fun for the kids. Kids look forward to summer vacation all year long so it's important that divorced or divorcing parents deal with summer vacations and child custody arrangements in a cordial way.

Child custody in the summertime doesn't have to be plagued by conflicts! Here are some tips for avoiding those potential conflicts with your spouse and your kids during the three school-less months:

Plan vacation schedules in advance
Agreeing on a vacation schedule is the first step in dealing with child custody during the summer months. A vacation schedule can replace a regular child custody agreement if it is approved by a court and made legally binding. Agreeing on a temporary schedule for the summer vacation months well in advance will help to avoid many potential conflicts.

Foster good communication with the other parent
It is absolutely crucial to communicate with the other parent and notify him or her of any vacation plans and summer activities so that the child's location is known in the event of an emergency. It's always a good idea to also notify the other parent if vacation plans change. Keep in mind that when a parent refuses to disclose vacation plans to the other parent, both parents might end up in court. Unless there is a compelling reason not to, a judge will most likely order the parent to divulge vacation plans for safety reasons. This will cost time, money, and stress which could easily be avoided with open communication.

Be sensitive to your child's emotions
Summer child custody schedules are often quite a big change from the normal daily routine during the school year. Sometime kids are sent to different cities or states to be with the other parent, which might cause an emotional reaction. It's important for parents to be sensitive and understanding even when the child expresses that he or she misses the other parent. It's important to not take the child's reactions personally and to instead focus on the extra time you get to spend with the child.

Read more about the opinion of children in custody and visitation disputes

Don't Skip or Tweak Child Support Payments
A change in time-share over the summer months (and likely resulting change in financial situation) does not mean that support payments can be skipped or tweaked. Unilaterally skipping or tweaking a support payment is sure to cause conflict with the other parent. Instead, a child support modification should be properly sought with the courts.

summer vacation child custody

Keeping these tips in mind this summer when dealing with child custody arrangements is likely to result in a lot more fun in the sun with your kids!

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A Divorce Attorney's Perspective on Moving Out of the Marital Home

June 25, 2013

SkinnyGirl Bethenny Frankel New York ApartmentYou may remember our previous blog highlighting the celebrity divorce of Bethenny Frankel, founder of SkinnyGirl Cocktails, and Jason Hoppy. Well, their bitter divorce battle continues to grab entertainment headlines, which report that the soon to be ex-couple is actually still living together in their five million dollar New York City apartment with their 3-year old daughter, Bryn. As if a divorce isn't already stressful enough, try living in the same household as your soon- to-be-ex while going through the often long, drawn-out divorce proceedings. Frankel tells PEOPLE, "My living situation is very, very stressful...I don't think it's very healthy for anyone involved. It's very upsetting. You just have to endure it."

It may seem puzzling why Frankel would continue to endure the stress of sharing an apartment with her soon-to-be-ex when she can clearly afford to move into her own place and not have to face Hoppy on a day-to-day basis. Perhaps her reasoning is related to two main concerns related to moving out of the marital home while the parties are going through the divorce process. The first concern is whether moving out of the home will affect a party's claim to ownership when assets are being divided down the road. The second concern is whether moving out could adversely affect a party's standing in his or her battle for primary custody of the child or children.

how will moving out affect my divorce?The martial home is likely a significant asset, if not the most significant asset in many divorces. So it's reasonable that divorcing spouses would worry that "abandoning" the home would make it more difficult for the one who leaves to make a claim on the property in a divorce settlement. If both claim ownership of the home then would that ownership be jeopardized if one party moves out? As California divorce attorneys know, if the home was acquired during marriage then it remains a marital asset subject to distribution regardless of who remains in the home during the divorce process.

If money is not an issue, then many divorce attorneys often advise clients to physically separate when going through a divorce, which usually means moving out of the marital home. A little distance can often times do a world of good for parties who are going through the divorce process. However, when a party does decide to move out of the marital home, there needs to be some serious discussions about the status of the marital residence. Aspects that need to be addressed include: the care, maintenance and financial obligations regarding the home in the interim, items left in the home, and whether the party left in the martial home will have exclusive use and possession of the home. The parties and their divorce attorneys need to discuss the whether the spouse who remains in the home has an expectation of privacy or if the spouse who moved out will be entitled to some use or enjoyment of the home after moving out.

effects of moving out of the marital residence in divorceAnother concern regarding moving out of the marital home is with respect to child custody. Since both Frankel and Hoppy want primary custody of their daughter Bryn, they might be concerned that moving out of their NYC apartment could adversely affect their standing in their battle for primary custody. Until a parenting plan is in place, "abandoning" the marital home could indicate that parent's lack of interest in the child's daily life if the child remains in the marital home with the other parent. This concern can potentially be resolved by establishing an interim custody schedule which ensures that the parent leaving the marital home will have frequent and continuous access to the child. The parent who moves out could also have his or her divorce attorney argue that the purpose of moving out was to reduce ongoing marital conflict out of concern for the child's well-being throughout the divorce proceedings.

Nonetheless, many San Diego divorce attorneys will generally advise clients with custody disputes to just stay in the marital home together if possible, like Frankel and Hoppy are doing. First, it helps to avoid creating a potential new status quo regarding the "primary residential parent" where the divorce process is taking an extended period of time. And second, when the parties continue to live together under the same roof emotions tend to get heated. As a result, there may be more incentive to conclude the divorce quicker by negotiating a divorce settlement.

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Is There a Limit On What Child Support Payments Can Be Used For?

June 24, 2013

Basketball - Nash Divorce and Child SupportLos Angeles Lakers star Steve Nash has allegedly been in a bitter child support battle with his ex, Alejandra Amarilla. TMZ reports that Nash allegedly doesn't want to pay up because he is worried that Alejandra, who is an excessive spender, will waste the child support payments by spoiling the kids with expensive luxuries that they do not need. If ordered to pay child support, can Nash limit what Amarilla uses the child support payments for?

Child support payments can be used for anything that is considered "necessary" for the child's care and well-being. This generally includes things such as the child's food, clothing, school expenses, after-school expenses and toys. Costs for rent or mortgage, utility bills and other household items are also typically justified as going towards the basic care of the child.

However, California (like a majority of the states) does not require the parent who receives the child support payments to give an accounting to the other parent of how the child support money is spent. Only ten states allow courts to demand an accounting of expenses and spending of child support money received in ten states (Colorado, Delaware, Florida, Indiana, Louisiana, Missouri, Nebraska, Oklahoma, Oregon and Washington). Also in Alabama, courts are allowed to demand such accounting under certain circumstances.

Child Walking - Child Support Modification San DiegoHere in California, it is merely presumed that the child support money is spent on the child. Thus, the parent who is making the child support payments does not have much say regarding how the money is used once it leaves their hands.

But what happens when the parent paying the child support suspects that the money is being used not only to care for their children but that it is also going towards the other parent's personal needs? Unfortunately, not much can be done unless the child's needs are actually being neglected or ignored. The payor parent won't be able to seek a modification in his or her child support order from the court without significant evidence that the child's needs are not being met by the parent who receiving the child support payment.

While the parent paying spousal support may want reassurance that their hard-earned dollars are actually going towards their children's needs, rather than their ex's luxuries, unfortunately the law in California is not set up to provide such reassurance. So if Nash is indeed ordered to pay child support to Amarilla, it looks like he won't have much support from the family law court in keeping tabs on Amarilla's spending.

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Tips from the Bench - Appearing in San Diego Family Courts

June 20, 2013

Courthouse - San Diego Family LawyersSan Diego Family Courts can be intimidating for those unfamiliar with appearing before a judge. Whether appearing with a divorce attorney or in "pro per" (an unrepresented party), it is important for family law litigants to be familiar with the "dos" and "don'ts" of San Diego Family Courts. The following is a few tips on how to earn favor with local family law judges when appearing before them.

1. Be Respectful

texting in courtThe most important thing to remember when appearing in court is to be respectful to every individual you encounter, including the opposing party and/or attorney. Judges in a divorce proceeding are not referees and do not want to witness parties arguing or fighting with each other in open court. Therefore, it is imperative to act with civility in the courtroom by giving every person a chance to tell his/her story without interruption or argument.

Another way to respect the court and legal process is to avoid the use of cell phones and other electronic devices in the courtroom. Judges say that cell phones on vibrate are just as distracting as a cell phone ringing. So it is best to put your cell phone on silent, or better yet, turn it completely off when entering the courtroom. Further, texting in court is not advisable.

2. What to Wear and What Not to Wear

how to dress in san diego family courtWearing the appropriate clothing to court does not go unnoticed by the local family judges. When appearing in court, it is not necessary to wear a full suit or dress outside of your comfort zone. However, judges appreciate when parties are not distracting with their clothing and they dress modestly. Dressing conservatively is also another way to show respect to the court.

3. Facial Expressions, Commentary and Body Language

In San Diego Family Law courtrooms, the judges sit at a particularly advantageous vantage point and can see everyone's behavior at all times. Judges are always watching the litigants, the attorneys, and even all of the people sitting in the audience. According to family law judges, it is incredibly distracting if any person makes facial expressions, nods, shakes his/her head, raises his/her hand, and otherwise takes attention from the proceeding. Remaining still and attentive in a family law hearing may be easier said than done. It is often difficult for parties to remain calm if the opposing attorney or litigant is telling the judge information the party does not want public or does not believe to be accurate. However, in such circumstances, waiting patiently for your turn is greatly appreciated by the judge.

In all situations local family law attorneys should lead by example and demonstrate civil and appropriate behavior for litigants in court. If you have a question regarding courtroom decorum, please ask an experienced family law attorney.

Learn more about the divorce attorneys at the Law Offices of Nancy J Bickford, APC

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The Second Wives Club Calls for Spousal Support Reform

June 19, 2013

Woman on beach - San DiegoSpousal support is an aspect of family law that divorce attorneys frequently answer questions about. In states such as Massachusetts and Florida, second wives are lobbying for spousal support legislation reform regarding "permanent" spousal support (commonly referred to as "alimony"). To clarify, in California, "permanent" spousal support is not a guarantee of a lifetime of support. However, it is only a spousal support award made at the conclusion of a divorce case. In contrast, "temporary" (or pendente lite) support is a spousal support award made during the pendency of the proceedings.

Because of the extremely broad and generous spousal support statutes, many second wives are reaching into their own pockets to contribute to the support of their husband's first wife. The second wives argue that they too have been sentenced to a lifetime of spousal support payments which hinder their ability to plan for retirement, prevent them from assisting their children and grandchildren financially, and generally reduce their overall standard of living.

In many states, the family code and court rulings permit the Court to consider the income or assets of a second spouse where the income of such spouse contributes to the support of the household, giving the paying spouse more of his own income with which to satisfy spousal support obligations. Under California Family Code § 4323, family courts are prohibited from considering the income of the supporting spouse's subsequent spouse when determining or modifying spousal support. Despite this blanket prohibition, cases which held that a new spouse's income may be considered to the extent that the income reduces the paying spouse's living expenses (and thus increased the ability to pay) may still be viable. It seems even California has a giant loophole which grants Courts discretion to consider income of new spouses when considering a divorce attorney's request for spousal support determinations or modifications for their client.

With second wives demanding reform, legislators are in a difficult position as they will be balancing the interest of the first wife and her right to support against public policies such as a supported spouse's obligation to become self supporting and the supporting spouse's right to move forward after divorce. The Second Wives Club has a few suggestions which it feels fairly addresses the rights of all parties.

Family Law Reform - US CapitalThe reformers are pushing for durational spousal support awards which are sufficient to permit the supported spouse to gain the education, training, or experience necessary to become self-supporting. The duration of the spousal support will be contingent on the length of the marriage, the age of the supported spouse and the supported spouse's ability to become employed. Upon the date set for payments to end, the supporting spouse's obligation to pay spousal support will end regardless of whether supported spouse has become gainfully employed. Although the Second Wives Club is lobbying strong in various states, divorce attorneys feel that California will likely not experience significant reform in this area any time soon.

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